JOSEPH SHINE versus UNION OF INDIA

Citation: [2018] 11 S.C.R. 765 · Decided: 27-09-2018 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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[2018] 11 S.C.R. 765
JOSEPH SHINE
v.
UNION OF INDIA
(Writ Petition (Criminal) No. 194 of  2017)
SEPTEMBER 27, 2018
[DIPAK MISRA, CJI, R.F. NARIMAN,
A.M. KHANWILKAR, DR. D.Y. CHANDRACHUD AND
INDU MALHOTRA, JJ.]
Penal Code, 1860: s.497 – s. 198 of Cr.P.C – Offence of
Adultery – Whether unconstitutional, being violative of Articles 14,
15 and 21 – Held: (Per Court): s. 497 IPC and s. 198 Cr.P.C. being
violative of Articles 14, 15 and 21 of the Constitution, are
unconstitutional – (Per Dipak Misra, CJI): s. 497 treats women,
subordinate to men – The rationale of the provision suffers from
absence of logicality of approach and therefore suffers from vice
of Art. 14 being manifestly arbitrary – Section 497 also creates
invidious distinctions based on gender stereotypes which creates a
dent in the individual dignity of women and hence offends Art. 21 –
Offence of adultery u/s. 497 IPC does not fit into the concept of
crime – If it is treated as a crime, there would be immense intrusion
into the extreme privacy of the matrimonial sphere – Section 198
Cr.P.C. deals with procedure for filing complaint in relation to
offence u/s. 497 IPC, and hence it is also unconstitutional – (Per
R.F. Nariman, J.): What is punished as ‘adultery’ is not ‘adultery’
per se, but the proprietary interest of a married man in his wife –
The archaic law u/s. 497 has long outlived its purpose and does not
square with today’s constitutional morality – It has become utterly
irrational, manifestly arbitrary and discriminatory and hence
violative of Art. 14 and 15(1) – Dignity of individual is a facet of
Art. 21 – A statutory provision which degrades the status of women,
falls foul of modern constitutional doctrine and must be struck down
being violative of Art. 21 – Section 198 Cr.P.C. also being
discriminatory provision, is held constitutionally infirm – (Per
Chandrachud, J:): Right to sexual autonomy and privacy has been
granted the stature of a constitutional right – Section 497, in its
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SUPREME COURT REPORTS
[2018] 11 S.C.R.
effort to protect the sanctity of marriage, has adopted a notion of
marriage which does not regard the man and the woman as equal
partners – Section 497 thus subordinates the woman to a position
of inferiority – Constitutional morality requires the court to enforce
constitutional guarantees of equality before law, non-discrimination
on account of sex and dignity, all of which are affected by operation
of s. 497 – Therefore, s. 497 IPC violates Art. 14 – It is based on
gender stereotypes about the role of women and violates the non-
discrimination principle embodied in Art. 15 – It is also a denial of
the constitutional guarantees of dignity, liberty, privacy and sexual
autonomy which are intrinsic to Art. 21 – Thus, Section 497 IPC is
unconstitutional – (Per Indu Malhotra, J.): Section 497 IPC fails
to consider both men and women as equally autonomous individuals
in society – The anomalies and inconsistencies in s. 497 IPC would
render the provision liable to be struck down on the ground of being
arbitrary and discriminatory – Any legislation which treats similarly
situated persons unequally or discriminates between persons on
the basis of sex alone is liable to be struck down as being violative
of Articles 14 and 15 – Right to privacy u/Art. 21 would include the
right of two adults to enter into a sexual relationship outside
marriage – An invasion of privacy u/Art. 21, by the State must meet
a three-fold requirement i.e. (i) legality, (ii) need and (iii)
proportionality – Section 497 IPC as it stands today fails to meet
the three fold requirement and therefore violative of Art. 21 – Section
198(2) of Cr.P.C. which contains the procedure for prosecution
under Chapter XX of IPC shall be unconstitutional only to the extent
that it is applicable to the offence of adultery u/s. 497 IPC –
Constitution of India – Arts. 14, 15 and 21.
Constitution of India:
Art. 15(3) –  Protective discrimination –  Applicability of – To
s.497 IPC – Held ( Per: R.F. Nariman, J.): Art. 15(3) is applicable
only to the law made by the State after coming into force of the
Constitution and not to “existing law” – s. 497 is, in constitutional
language, an “existing law” which continues, by virtue of Art.
372(1), to apply, and could not be said to be law made by the
“State”  – (Per D.Y. Chandrachud, J.): - Art. 15 (3) does not protect
a statutory provision that entrenches patriarchal notions in garb of
protecting wom

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